NAGEL & CLAY

[2017] FamCA 922

FAMILY COURT OF AUSTRALIA

NAGEL & CLAY [2017] FamCA 922

FAMILY LAW – CHILDREN – REVIEW OF SENIOR REGISTRAR’S DECISION – Where the father is currently spending three nights per fortnight with the children and is seeking that his time with the children be extended – Where the parties are experiencing difficulties during changeovers – Where the current arrangement may not be appropriate in two years when the matter is likely to be listed for final hearing – Where the mother intends on challenging the expert’s report – Orders made extending the father’s time with the children to five nights per fortnight.

APPLICANT: Mr Nagel

RESPONDENT: Ms Clay

FILE NUMBER: SYC 7861 of 2015

DATE DELIVERED: 15 November 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 14 November 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT: Pearson Emerson Meyer Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

IT IS ORDERED

1. That the children B born … 2008, C born … 2011, and D born … 2013 (“the children”) live with the father as follows:

   (a)       Each Wednesday from 8.00 am until 6.00 pm on Thursday;

   (b)In the first week of each two week cycle, on Sunday from 8.00 am until the beginning of school or day care on Monday morning, commencing on the Sunday immediately following the making of this order; and

   (c)In the second week of each two week cycle, from 8.00 am on Saturday until the beginning of school or day care on Monday morning.

2. That at all other times the children live with the mother.

3. That for the purpose of changeover, where it does not occur at the school or day care centre, the mother shall deliver the children to the father’s residence and collect them from his residence and the father will use his best endeavours to ensure that, where possible, his sister is present to effect the changeover and he is not present.

4. That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nagel & Clay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7861 of 2015

Mr Nagel

Applicant

And

Ms Clay

Respondent

REASONS FOR JUDGMENT

1. Mr Nagel (“the father”) and Ms Clay (“the mother”) are the parents of three children, B aged nine and a half years, C aged six years and D aged almost four years. They separated in October 2015 and these proceedings were commenced in November 2015 in the Federal Circuit Court and transferred to the Family Court of Australia in February 2016.

2. The procedural history is illustrative of the problems caused by the delays endemic in parenting proceedings in this Court.

3. Interim parenting orders were made by Senior Registrar Campbell on 15 March 2016. The father filed an application to review that decision and the matter came before me on 27 July 2016. On 4 August 2016 I delivered judgment and made orders which provided that the children spend time with the father each Wednesday from 8.00 am until 6.00 pm on Thursday, and on the first Sunday of each fortnightly cycle from 8.00 am until 6.00 pm and on each alternate weekend from 8.00 am Saturday until 6.00 pm on Sunday. Thus, although the children spent three overnights with the father in each fortnight, they spent seven days in each fortnight with him, albeit that the older children were at school on four of those days.

4. These reasons should be read in conjunction with the reasons delivered on 4 August 2016.

5. Those orders were put into effect.

6. On 15 August 2017, after the orders had been in operation for just over one year, the father filed an Application in a Case to vary the orders by extending the time the children spent with him overnight, such that, if the orders sought by the father were made, the changeovers which had been occurring directly between the parents would be reduced. That application was opposed by the mother.

7. On 21 September 2017 the father’s application was heard by Senior Registrar Campbell who dismissed the application. The father sought to review the orders of the Senior Registrar and the matter came before me again for hearing on 14 November 2017, just a day short of two years after the Initiating Application was filed.

8. Senior counsel for the father told the Court that his enquiries indicated that the substantive proceeding is in the pool awaiting the allocation of a first day hearing before a judge and that it is likely that such a date will be allocated in 2019, leading to a hearing in the latter half of 2019, some four years after filing.

9. Thus, the interim parenting arrangements for these children who in two years will be 11 and a half, eight and six years respectively, have to be determined for the next two years.

10. In an ideal world, arrangements that are “good enough” would not be revisited where the matter will be heard in a reasonable time. Some change in the circumstances of the children would need to be demonstrated and that change would need to be such as to convince the Court that it is necessary to revisit the current arrangements.

11. It is, however, well understood that the arrangements for children need to be age appropriate and arrangements which were suitable for D at age three may not be suitable at age six. More relevantly, arrangements for B at eight years old may not be suitable for him when he is eleven.

12. If I were in a position to allocate a hearing date for this matter within the next twelve months, I would dismiss the father’s application. But I am not.

13. In the present case, there is evidence that the arrangements are not “good enough”.

14. Both of the parents depose to significant difficulties during changeovers. Each ascribes the blame to the other. Regardless of which parent is responsible for the difficulties, and for the purpose of this determination (made as it is without the benefit of cross-examination of the parties or the single expert) I will assume that they each contribute. It is the children who bear the brunt of the changeovers which, on any version of the evidence, are inappropriate.

15. The mother opposes any alteration in the current arrangement until 2019. However, her suggestion to ameliorate the current problems occurring during changeovers is that she will collect the children from the father and that, where possible, on Thursdays, the changeover should occur between the mother and the father’s sister.

16. The father asks the Court to extend the current Wednesday overnight until Friday morning, to extend the first Sunday to Monday morning and to extend the alternate full weekend until Monday morning. The father’s proposal still involves changeovers between the parents on Wednesday morning (for D), on Friday morning (for D) and on Saturday morning (for all three children).

17. The father relies heavily on the recommendations of the single expert, Dr E, contained in his report dated 1 June 2016. However, those recommendations are subject to significant challenge by the mother and, until such time as that challenge can be made, limited weight can be placed on Dr E’s opinions, as opposed to his observations.

18. In any event, taken at its highest, Dr E’s recommendation is for a gradual transition to a shared care arrangement and, on one interpretation, progression is dependent on therapeutic intervention. Dr E recommends individual counselling for the mother, couple counselling focused on the establishment of respectful co-parenting and family counselling. To date, none of this has occurred. The parties agreed to consent orders on 18 August 2017 to attend on a private therapist. Despite those orders, that arrangement did not proceed. Another therapist is not proposed and agreed. Given that Dr E’s recommendations were made some 17 months ago, there has been no great rush from either parent to implement them.

19. I propose to vary the existing arrangements to ameliorate the effect on the children of acrimonious changeovers to the extent that I can.

20. There is little to be gained by extending the Thursday contact to overnight. There will still be a face-to-face handover on Friday morning for D. However, as all three children go to school or day care on Monday, there is an advantage in extending the Sunday nights to Monday morning and eliminating the Sunday evening changeover.

21. Both parties have agreed that, if possible, the husband’s sister should hand D over to the mother on the occasions when she is present. The mother has offered to collect D at the father’s residence so as to save his sister having to travel to effect the changeovers. That seems to be a sensible proposal.

22. I consider that those changes are consistent both with Dr E’s recommendation for graduated change and my own concerns that face-to-face changeovers between the parents should be avoided where possible.

23. I do not propose to make any other changes to the parenting arrangements which were put in place in August 2016.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 15 November 2017.

Associate: 

Date:  15/11/2017